Lame Duck Regulatory Agenda Projects $44 Billion in Midnight Costs

Sam Batkins

Here are the final pieces to President Obama’s regulatory legacy. What can the nation expect in the lame duck? What will Congress target for repeal in 2016? With the recent release of the administration’s final regulatory agenda, it has largely answered these questions. An American Action Forum (AAF) review of the data found at least $75.3 billion in planned regulatory costs, including the majority ($44.1 billion) during the “midnight” regulatory period from November 2016 to January 2017. This would be in addition to the more than $150 billion in final regulatory costs already published in 2016.

With little time to propose and finalize rulemakings by January 20, 2017, the administration listed 20 new economically significant measures, up from 14 in the spring agenda. Here are the notable new measures:

For perspective on timing, the administration listed 30 new significant regulations (not previously published in the agenda) in its fall 2010 agenda, shortly after Dodd-Frank and the Affordable Care Act (ACA) had passed. Likewise, the regulatory agenda the following fall listed 32 new significant actions. Largely, the administration has implemented many of its regulatory priorities: virtually all of the ACA, a majority of Dodd-Frank, and dozens of rules aimed at reducing greenhouse gas emissions. However, as this agenda demonstrates, and recent regulatory output corroborates, there are still key rulemakings left for the waning days of the Obama Administration.

With regard to “midnight regulation” or rules published after Election Day, but before the next president takes office, there are at least $44.1 billion in possible midnight regulatory costs, timed mostly for November and December of 2016. At the beginning of the year, the administration forecasted roughly $5.2 billion in regulatory costs for November and December. Although it’s not certain the outcome of the recent election changed the calculus for regulators, the output for December alone could top $24 billion, according to Unified Agenda data.

Below, there are approximately 40 notable rulemakings and their scheduled publication dates. Notice the relative lack of activity after January 2017.

Possible Cost: $75.3 Billion

The $75 billion estimate contains roughly 40 monetized figures out of what will be hundreds of potential final rules. It is unlikely regulators in the Obama Administration will have the opportunity to enact the full slate listed here. Still, there is a degree of uncertainty. The public does not know the cost of proposed rulemakings not yet published, nor the countless other rules that will be final in the coming weeks. There is the possibility of direct or interim final rules omitted from this agenda, but those measures, if significant, are likely to face legal challenges. Finally, the ultimate costs and benefits of these measures could increase or decrease significantly compared to earlier versions.

This is the final regulatory agenda the administration will release. Its authors know too well that everything not yet final could come under scrutiny from President-elect Trump and the Republican Congress next year. Although this agenda puts the finishing touches on what was an active eight years for regulators, the fate of many of these measures lies with the next Congress and the incoming administration. The agenda might reveal $44 billion in midnight regulations today, but they could vanish quickly in a series of votes or executive actions in 2017.